Borough v State of Queensland (Department of Environment and Science) [2022] QIRC 357

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Borough v State of Queensland (Department of Environment and Science) [2022] QIRC 357 PARTIES: Graham Borough, Raphael (Appellant) v State of Queensland (Department of Environment and Science) (Respondent) CASE NO: B/2022/20 PROCEEDING: Application for proportionate payment of long service leave DELIVERED ON: 13 September 2022 HEARING DATE MEMBER: HEARD AT: 16 August 2022 Hartigan IC Brisbane ORDER: The application is dismissed. CATCHWORDS: INDUSTRIAL LAW – QUEENSLAND GENERAL – EMPLOYMENT CONDITIONS – LONG SERVICES LAVE – ENTITLEMENT TO LEAVE– where the applicant did not comply with a direction to be fully vaccinated against COVID- 19 pursuant to s 187(1)(d) of the Public Service Act 2009 - where applicant was terminated from his employment – where the applicant does not contend that the dismissal was unfair - whether applicant is entitled to payment of proportionate payment of long service leave – where the termination of employment occurred due to the applicant's conduct – application dismissed -- 1 of 12 -- 2 LEGISLATION: CASES: Industrial Relations Act 2016 (Qld), s 93, s 95 Public Service Act 2009 (Qld) s11, s 98, s 187, s 188 Public Health Act 2005 (Qld) Craig Geoffrey Fox v Programmed Integrated Workforce Ltd (No 2) [2022] QIRC 281 Schipp v The Star Entertainment Qld Limited [2019] QIRC 049 APPEARANCES: Mr R. Borough, the Applicant in person. Ms A.L. Bain of counsel for the Respondent, instructed by Crown Law. Reasons for Decision Introduction [1] An application for proportionate payment of long service leave was filed by Raphael Graham Borough ('the Applicant') on 9 March 2022 in the Queensland Industrial Relations Commission ('the Commission'). The Applicant seeks an order that his former employer, the State of Queensland (Department of Environment and Science) (‘the Department’), pay an amount of pro rata long service leave that the Applicant contends he was entitled to be paid upon the termination of his employment with the Department. [2] The Department does not dispute that, at the time of the termination of the employment, the Applicant had completed at least 7 years continuous service, but less than 10 years continuous service in satisfaction of the requirement in s 95(3) of the Industrial Relations Act 2016 (Qld) ('the IR Act'). However, the Department resists the application on the basis that it contends that the Applicant is not entitled to the payment of his long service leave in accordance with s 95(4)(c) of the IR Act. Relevantly, the Department contends that the Applicant was dismissed from his employment on the basis of his conduct for failing to comply, without reasonable excuse, a direction given to him as a public service employee by a responsible person pursuant to s 187(1)(d) of the Public Service Act 2009 ('the PS Act'). [3] The Applicant does not contend that the dismissal was unfair.1 It follows, that the issue for me to determine is whether the Applicant is entitled to receive payment of his pro rata long service leave entitlement on the basis that the termination of the Applicant's 1 T1 – 3, ll 1-2. -- 2 of 12 -- 3 employment occurred for another reason other than the Applicant’s conduct, capacity or performance. Relevant legislative provisions [4] Section 95 of the IR Act provides for an entitlement to long service leave as follows: 95 Entitlement—employees other than seasonal employees (1) This section applies to an employee, other than a seasonal employee. Note - For provisions applicable to seasonal employees, see subdivisions 7 and 8. (2) The employee is entitled to long service leave, on full pay, of – (a) if the employee has completed 10 years continuous service - 8.6667 weeks; and (b) after 10 years' service, if the employee has completed at least a further 5 years continuous service - a period that bears to 8.6667 weeks the proportion that the employee's further period of continuous service bears to 10 years. (3) An employee who has completed at least 7 years continuous service is entitled to a proportionate payment for long service leave on the termination of the employee's service. (4) However, if the employee's service is terminated before the employee has completed 10 years continuous service, the employee is entitled to a proportionate payment only if – (a) the employee's service is terminated because of the employee's death; or (b) the employee terminates the service because of – (i) the employee's illness or incapacity; or (ii) a domestic or other pressing necessity; or (c) the termination is because the employer – (i) dismisses the employee for a reason other than the employee's conduct, capacity or performance; or (ii) unfairly dismisses the employee; or (d) the termination is because of the passing of time and – (i) the employee had a reasonable expectation that the employment with the employer would continue until the employee had completed at least 10 years continuous service; and (ii) the employee was prepared to continue the employment with the employer. [5] In Schipp v The Star Entertainment Qld Limited,2 Thompson IC conducted a review of the legislative history of the long service leave provisions. Relevantly, he outlined the following history: 2 Schipp v The Star Entertainment Qld Limited [2019] QIRC 049. -- 3 of 12 -- 4 [18] Prior to the Industrial Relations Act 1999 (IR Act 1999) the long service leave legislation included that an employee was entitled to a proportionate payment for long service leave unless terminated by the employer "for a cause other than serious misconduct". In June 2001 the long service leave legislation was amended in Queensland and the words related to "serious misconduct" were replaced with "for a reason other than conduct capacity or performance". [19] The submission addressed a Review of Long Service Leave Entitlement3 undertaken by a Full Bench of the Commission in 2000 and it appears that the replacement of "serious misconduct" was due to Industrial Tribunal experiences with unlawful and unfair dismissals. The Review stated: …given the experience with unlawful and unfair dismissals which industrial tribunals have acquired in the past decade, it seems to us entirely appropriate to march away from the distinction between serious misconduct and misconduct simpliciter. [20] Following the Review, the Queensland Parliament made changes through the Industrial Relations and Another Amendment Bill 2001 to long service entitlements. In the course of the second reading speech the Minister for Industrial Relations made statements that included: The decision to legislate was advocated by both unions and employer groups and will ensure the benefits of the enhanced entitlement recommended by the QIRC are made available to all Queensland workers. … In essence, the Bill provides a fair outcome for workers who can now look forward to having earlier access to the leave entitlement. … Once again, the Government has got the balance right in the interests of all Queenslanders. [21] If the intent of the changes to the Act in 2001 was to deny employees dismissed for illness or medical incapacity a long service leave payment, this would be contrary to the "enhanced entitlement" referred to by the Minister. [22] In light of "public interest" the current terms of s 95 of the Act that entitles an employee to pro rata long service leave by resigning from the employment for "illness or incapacity" yet disqualifies an employee dismissed from the same reason for receiving the payment, is adverse, unfair and discriminatory. [23] It would be highly unlikely that the intention of the Queensland Government in introducing changes to long service leave in 2001 would have done so with the intent to disqualify employees dismissed for incapacity due to illness from receiving pro rata long service leave. [24] In the matter of Maunder v Rane Brothers Pty Ltd, Asbury C stated: In an appropriate case, it would be open to the Commission to find that while an applicant may have been guilty of misconduct which warranted dismissal, the dismissal was unfair and the misconduct was not serious enough to justify the employer withholding payment of some entitlement such as long service leave. In such a case, the withholding of the payment may in itself constitute the unfairness. [25] If a misconduct dismissal warranted a payment of pro rata long service leave and was considered as "not serious enough" and "unfair" to withhold the payment, then it would stand to reason that it would be clearly unfair to withhold payment of long service leave for an illness incapacity dismissal (citations omitted). -- 4 of 12 -- 5 [6] In Craig Geoffrey Fox v Programmed Integrated Workforce Ltd (No 2),3 Merrell DP considered the approach to be taken in construing s 95(4)(c)(i) of the IR Act as follows: The construction of s 95(4)(c)(i) of the Act [44] The meaning of the provision in a statute must be determined by reference to the language of the instrument viewed as a whole and the legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. In addition, the purpose of the legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. [45] Section 14A(1) of the Acts Interpretation Act 1954 provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. The noun 'purpose', for an Act, is defined in the Acts Interpretation Act 1954 to include its policy objective. [46] A consideration of the context of statutory text includes the legislative history and extrinsic materials. The context should be considered at the first instance and not at some later stage and context includes things such as the existing state of the law and the mischief the statute intended to remedy. [47] Long service leave is provided, as one of the Queensland Employment Standards, by virtue of ch 2, pt 3, div 9 of the Act. Section 95 of the Act sets out the entitlement to long service leave of an employee other than a seasonal employee. As at 2 August 2019, given that ch 2, pt 3, div 9, sub-divs 7 and 8 set out the entitlement to long service leave for seasonal employees, my view is that s 95 of the Act applied to casual employees. [48] Section 95(2) of the Act sets out an employee's entitlement to long service leave after completing 10 years continuous service. The combined effect of s 95(3) and (4) of the Act sets out the circumstances where an employee, who has completed at least seven years continuous service, is entitled to a proportionate payment of long service leave on the termination of the employee's service. [49] As at 2 August 2019, s 95(4) of the Act relevantly provided: (4) However, if the employee’s service is terminated before the employee has completed 10 years continuous service, the employee is entitled to a proportionate payment only if- (a) the employee’s service is terminated because of the employee’s death; or (b) the employee terminates the service because of- (i) the employee’s illness or incapacity; or (ii) a domestic or other pressing necessity; or (c) the termination is because the employer- (i) dismisses the employee for a reason other than the employee’s conduct, capacity or performance; or (ii) unfairly dismisses the employee; [50] On the clear words used in s 95(4)(c) of the Act, that provision dealt with the entitlement of an employee, to a proportionate payment of long service leave, who had completed at least seven years continuous service and where the employee's service was terminated because the employer dismissed the employee. Pursuant to s 3 Craig Geoffrey Fox v Programmed Integrated Workforce Ltd (No 2) [2022] QIRC 281. -- 5 of 12 -- 6 95(4)(c)(i) of the Act, an employee had such an entitlement where the employer dismissed the employee for another reason other than the employee's conduct, capacity or performance. For the reasons given in paragraph [47] of these reasons, that provision applied to a casual employee (citations omitted). … [7] Relevantly, in the circumstances of this matter, I must consider whether the Applicant was dismissed from his employment for a reason other than his conduct. Consideration [8] The Applicant was employed in the position of Senior Environmental Officer, (PO3) Waste/Development and South East Compliance, Environmental Services and Regulation by the Department. The Applicant was employed on a continuous basis between 12 January 2015 until the employment was terminated on 4 March 2022, being a period of 7 years, 1 month and 21 days. [9] The Department contends that the Applicant’s employment was terminated because the Applicant did not comply with a direction to be fully vaccinated against COVID-19 and failed to provide evidence to the Department in accordance with the COVID-19 Vaccination Requirements and Policy & Procedure (‘the Policy’). [10] Relvantly, the Department contends that the Applicant was an employee who was required to comply with the direction contained in the Policy and to provide evidence that he had received at least the first dose of an approved COVID-19 vaccine by 8 February 2022.4 [11] On 2 February 2022, the Applicant applied for an exemption from the mandatory vaccination requirements in the Policy, due to his concerns regarding the safety and efficacy of the approved COVID-19 vaccines, but he did not provide any evidence, including for instance, any evidence of a specific medical contraindication to support a request for an exemption from being administered the COVID-19 vaccine. [12] Relevantly, the Applicant's request for an exemption was in the following terms: I can not give my informed consent regarding the medical procedure proposed to be mandated (COVID19 vaccination) based on the incomplete or insufficient data for the products sides effects (risks) and efficacy (benefits). I am happy to have this request considered a request for delay until such a time as all conventional processes, clinical trials, studies and approvals have been completed in line with the requirements for any other new medication or vaccines proposed to be offered to the public under regular (non-emergency powers) scenarios. Until that time it is impossible for me to give informed consent. There are other reasons to object to the products being proposed via mandate, but the lack of suitable data to make an informed decision is the basis for this exemption/delay. Other objections can be discussed at time when sufficient data exists for these products. [13] By letter dated 2 February 2022, the Department advised the Applicant of its decision to refuse his exemption application. The letter advised the Applicant that if he did not 4 This direction was made pursuant to clause 8.1 of the Policy. -- 6 of 12 -- 7 comply with the requirements of the Policy, he may be liable for discipline in accordance with Directive 14/20: Discipline. [14] Despite being provided with an opportunity to do so, the Applicant did not request a review of the decision to refuse the exemption application. Accordingly, the decision to refuse the Applicant's application for an exemption remains in place. [15] On 9 February 2022, the Applicant was asked to show cause why disciplinary findings should not be made against him under the PS Act in relation to the following allegation: that in contravention of the direction given to you under the department's COVID-19 vaccination policy and procedure, you have not provided evidence confirming that you have received the required number of doses of an accepted COVID-19 vaccine. [16] On 23 February 2022, the Applicant responded to the first show cause notice. [17] On 25 February 2022, the Department advised the Applicant that a decision had been determined that the allegation was substantiated on the balance of probabilities and that grounds for discipline existed under s 187(1)(d) of the PS Act. The Applicant was also advised that the decision maker was considering whether a disciplinary action should be taken against the Applicant under s 188 of the PS Act and advised that the disciplinary action of termination of the Applicant's employment was being considered. [18] On 3 March 2022, the Applicant responded in writing to the second show cause notice. [19] On 4 March 2020, the Applicant was informed that his employment was terminated with immediate effect. The Applicant was not paid an amount of pro-rata long service leave upon the termination of employment. [20] As noted above, s 95(4)(c) of the IR Act and cl. 21.1(b) of Minister for Industrial Relations Directive 11/18: Long Service Leave provides that where an employee has completed at least seven years continuous service but less than 10 years continuous service, they will be entitled to proportionate payment for long service leave on termination by the employer only if, inter alia, the employee is dismissed for another reason other than the employee's conduct, capacity or performance. [21] The Applicant argues that the COVID-19 vaccine requirement was not a relevant aspect of the employment agreement that he was a party to. On this basis, the Applicant argued that the termination of the employment should be considered as a reason other than the Applicant's ‘conduct, capacity or performance'. [22] At the heart of the Applicant's position is a contention that the introduction of a mandatory requirement for vaccination against COVID-19 by his employer represents a profound and significant change to the employment agreement and should be viewed as the termination of the then existing employment contract, and the establishment of a new contract given the substantial nature of the change. -- 7 of 12 -- 8 [23] The Applicant was a public service employee,5 and accordingly, various provisions of the PS Act apply to the employment. [24] In issuing the direction to the Applicant and in commencing the show cause process, the Department relied on the Policy. [25] The Applicant contends that he did not consent to the terms included in the Policy, including those terms requiring that he be fully vaccinated against COVID-19 and that he provide evidence of such a vaccination. [26] Clause 1 of the Policy provides that the purpose of the Policy is to set 'out the requirements for prospective and existing employees to be vaccinated against COVID- 19 and procedures associated with this requirement.' [27] Clause 2 of the Policy, inter alia, sets out the matters that the Policy deals with as follows: • the requirements for existing employees to be vaccinated against COVID-19, and associated procedures • the requirements have been determined in consideration of relevant Public Health Direction made by the Chief Health Officers (CHO) under the Public Health Act 2005 and the risks posed by COVID-19, including risk to employees and others, services delivery and operations • the evidence and record keeping requirements relating to employees who are already vaccinated, recognising that many employees have already taken this important step • the support options available to employees who are in the process of becoming fully vaccinated • a case management approach for employees with recognised medical contraindications. [28] Clause 4 of the Policy cites that the authority for the Policy as being contained in ss 11 and 98 of the PS Act and the '[a]bility at common law for Chief Executive to give lawful and reasonable direction to their employees in relation to their employment.' [29] Section 11 of the PS Act provides for the relationship between chief executives of a department and public services employees in the following terms: 11 Relationship between chief executives and their public service employees (1) The chief executive of a department is, for the State, responsible for the employment of public service employees of that department. (2) The public service employees of a department are responsible to that department's chief executive in relation to their employment in that department. Note – For particular provisions about a chief executive's functions, see chapter 4, part 1, division 3. … [30] Section 98 of the PS Act provides for the responsibilities of a chief executive as follows: 5 Within the meaning of s 9 of the PS Act. -- 8 of 12 -- 9 98 Responsibilities (1) A chief executive is responsible for all of the following matters in relation to the chief executive’s department— (a) establishing and implementing goals and objectives in accordance with Government policies and priorities; (b) managing the department in a way that promotes the effective, efficient and appropriate management of public resources; (c) the following for departmental employees— (i) their numbers; (ii) classification levels; (iii) designation of roles; (d) planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under this Act; (e) adopting management practices that are responsive to Government policies and priorities; (f) promoting continual evaluation and improvement of the appropriateness, effectiveness and efficiency of departmental management; (g) implementing policies and practices about access and equity to ensure maximum access by members of the community to Government programs and to appropriate avenues for review; (h) ensuring compliance with the equality of employment opportunity obligations under chapter 2; (i) ensuring maintenance of proper standards in the creation, keeping and management of public records. Examples of chief executive responsibilities for departmental employees— • recruitment and selection • performance appraisal, training and development • discipline and termination of employment • working conditions and industrial issues • ensuring fair treatment (2) The chief executive’s responsibilities under this Act are in addition to the chief executive’s responsibilities under another Act. Note— The following are not subject to direction by a chief executive— -- 9 of 12 -- 10 • the information commissioner and staff of the office of the information commission (See the Right to Information Act 2009, sections 126, 146 and 149, and the Information Privacy Act 2009, sections 140 and 143) • the auditor-general, deputy auditor-general and staff of the audit office (See the Auditor-General Act 2009.) (3) In this section— departmental employees means public service employees employed in the chief executive’s department. designation, of a role, includes the title of the role and its organisational location within a department. … [31] I consider that the operation of both ss 11 and 98 of the PS Act authorises a chief executive to issue a direction to their employees in accordance with their responsibilities as set out in s 98 of the PS Act. I consider, having regard to the terms of ss 11 and 98 of the PS Act, the purpose of the Policy, and the subject matter with which it deals with, as set out in cls 2 and 4 of the Policy, that the chief executive has the power to require employees to be vaccinated in order to comply with directions of the Chief Health Officer, or where there is an identified risk to employees or others. [32] Further, as noted in the Policy, an employer has a common law right to issue a lawful and reasonable direction to an employee in relation to the employment. This may be the case even if the contract of employment does not specifically contemplate the requirements set out in the Policy. [33] In determining whether a direction is lawful and reasonable, regard must be had to the individual circumstances of the matter. [34] Whilst not couched in such terms, I take the thrust of the Applicant’s submissions to be that the direction was unlawful on the basis that the Department had no contractual grounds to issue the direction and require compliance with it by the Applicant. [35] However, as noted above, the PS Act does apply to the Applicant’s employment and given the operation of both ss 11 and 98, the Chief Executive was authorised to issue a direction and to require the compliance with the direction. [36] The Applicant does not raise any other grounds upon which he seeks to argue that the decision was unlawful. Accordingly, I consider that the direction was lawful. [37] There are a range of factors that may be considered when determining whether the direction was reasonable. [38] The terms of the Policy state that the requirements set out in the Policy have been determined having regard to the relevant public health direction made by the Chief Health Officer under the Public Health Act 2005 (Qld) and the risks posed by COVID-19, including risk to employees and others, service delivery officers and operations. -- 10 of 12 -- 11 [39] I consider that the terms of the public health order in place at the relevant time together with the Department's assessment of its workplace health and safety obligations in managing the risk posed by COVID-19, including the risk to employees and others, service delivery officers and operations are matters which support a conclusion that the direction was reasonable. [40] Further, the Applicant's personal circumstances should also be considered when determining if the direction was reasonable. The Applicant does not rely on any medical reasons to support an exemption from compliance with the direction. Rather, the basis for the Applicant's request to be exempted from the direction was due to what he considered to be 'incomplete or insufficient' data as to the possible side effects and efficiency of the vaccine. The Applicant does not seemingly refer to or acknowledge that the Department provided access to what it describes as 'official sources of information about COVID-19 vaccinations' and why such information was 'incomplete or insufficient'. The Applicant's hesitancy to be vaccinated due to his concern regarding what he considers to be incomplete or insufficient data does not form a basis upon which it could be determined that the direction was unreasonable having regard to the Applicant's personal circumstances. [41] Accordingly, I do not consider in all the circumstances of this matter that the direction was either unlawful or unreasonable. For the reasons referred to above, I consider the direction was lawful and authorised to be made by the terms of ss 11 and 98 of the PS Act and also at common law. Did the Applicant's non-compliance with the direction amount to 'conduct' for the purpose of s 95 of the IR Act? [42] It was determined by the Department that the Applicant's non-compliance with the direction was substantiated and formed a discipline ground pursuant to s 187(1)(d) of the PS Act. It was this disciplinary ground which was relied on to determine that the Applicant's employment be terminated. [43] The Applicant has not sought to have the decision to terminate his employment reviewed by any means including, for instance, filing an application for reinstatement. Accordingly, that decision remains undisturbed. [44] The question then is: does the Applicant's conduct which formed that basis for the reason for the termination of his employment exclude him from being paid pro-rata long service leave in accordance with s 95 of the IR Act? [45] The answer to that question is: yes. [46] The IR Act does not define the term conduct. The Macquarie Dictionary6 defines the term conduct as, inter alia: 6 Macquarie Dictionary (online 20 August 2022) 'conduct'. -- 11 of 12 -- 12 1. Personal behaviour; way of acting, deportment: good conduct. … [47] The Applicant's failure to comply with the directive falls within the definition of conduct as it was the Applicant's personal behaviour to refuse to do any act, namely, to comply with the direction. It was this conduct that was relied on by the Department to terminate the employment. [48] For these reasons, I am satisfied that the Applicant is excluded from the operation of s 95(4)(c) of the IR Act as the termination of his employment occurred due to the Applicant's conduct. Order [49] I make the follow order: The application is dismissed. -- 12 of 12 --